Alok Gupta vs Nct Of Delhi Thru Its Secretary & ...
2016 Latest Caselaw 2865 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                    W.P. (C) 5741/2014 & C.M. No. 14170/2014

                                              Pronounced on: 19th April, 2016

       ALOK GUPTA                                             .....Petitioner
               Through:               Nemo.

                             versus

       NCT OF DELHI THRU ITS SECRETARY & ANR.
                                                .....Respondents
                Through: Mr. Santosh Kumar Tripathi, ASC for
                          GNCTD/R-1.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner seeking issuance of an appropriate writ, order or direction for quashing of order dated 29th June, 2012 passed by Shri Devesh Singh, Director (CL), DDA rejecting the claim of the petitioner for allotment of an alternative site at Ghazipur under the category of paper trade. Further, the petitioner is seeking an appropriate writ, order or direction to seek execution of the Lease Deed in respect of Plot No.132, measuring 50 square meters FAR 140 in IFC Gazipur, Pocket-C, Delhi and sought other reliefs as may be connected thereto.

2. Briefly stated the facts leading to filing of the present case are that the respondent as per Notification dated 15th March, 2001 issued through Principal Secretary, Urban Development conducted a survey and prepared a list of 682 paper traders for the purpose of shifting them from the walled city to Gazipur. It is alleged that M/s. Rajsheel Distributors HUF who had started the work of paper trades since 1982 was one of the successful allottee of an alternative plot at Gazipur. Thereafter, allotment letter dated 10th April, 2007 Plot No.132, having FAR 140 at IFC Gazipur, Delhi measuring 50 square meters was issued to M/s. Rajsheel Distributors. The said firm is stated to have filed all the requisite documents including the sales tax returns for the years 2002-2003, 2003-2004 and 2004-2005 showing that the petitioner firm was working. The respondent DDA admitted in the order dated 29 th June, 2012 about the factum of having submitted the aforesaid returns. It is also stated that the petitioner firm deposited a sum of Rs.5,08,200/- being the 75% of the lease money and the land premium and thereafter was asked to deposit the balance amount of 25%, i.e. Rs.1,69,400/- which was also done by the petitioner firm. Thus, the complete sale consideration in respect of lease of the plot stood paid to the respondent DDA. It is stated that Rajinder Kumar Gupta, that is, father of the petitioner HUF was the Karta of M/s. Rajsheel Distributors, HUF and his wife Sheela Gupta was a member thereof. The petitioner is stated to have filed two affidavits having stamp of Rajinder Kumar Gupta, HUF in the capacity of

being proprietor of the petitioner firm M/s. Rajsheel Distributors, copies of which are placed on record. The petitioner firm after signing and execution of the Lease Deed was directed to deposit registration charges, which was also done. It is submitted that the DDA thereafter raised objections about non filing of the income tax returns from the year 2005 onwards as well as sales tax records. It is the case of the petitioner that Rajinder Kumar Gupta was suffering from various ailments and was practically bed-ridden therefore, the sales of the firm were less than Rs.5,000/- so the sales tax registration was not required and as the most of the business of paper was relocated at Gazipur naturally the business of the petitioner in the walled city, i.e. Chawri Bazar had also come down considerably. The petitioner had applied for a grant of TIN number as prior to applying for TIN number the sales being less then Rs.5,000/- no sales tax registration was required. It is alleged that the respondent ignored all these facts and with a mala fide intention cancelled the allotment of the plot to the petitioner firm. Rajinder Kumar Gupta is stated to have died on 3 rd July, 2011 his wife Sheela Gupta had pre-deceased him and Alok Gupta, son of Late Rajinder Kumar Gupta and Sheela Gupta being the only member of the HUF was stated to be only person controlling M/s. Rajsheel Distributors and since the plot was cancelled he was constrained to file the present writ petition. It is also admitted by the petitioner that the present writ petition is third in the series and the earlier two writ petitions were bearing No.W.P.(C)

No.7750/2010 and W.P.(C) No.2330/2012 and in the second writ petition, the High Court of Delhi had given direction to the respondent DDA to treat the writ as representation and take a decision with regard to restoration in the light of the documents submitted by them and pass a speaking order which has been done vide order dated 29th June, 2012. It is this order which is assailed in the present writ petition. It is in this background that the present writ petition has been filed seeking the aforesaid reliefs.

3. The respondent has filed a short reply affidavit. It was stated by Shri Vishva Mohan, Director (Commercial Land), DDA, Vikas Sadan, New Delhi that the petition is liable to be dismissed on account of three preliminary objections. Firstly, on account of the writ petition being barred by inordinate delay and latches. Secondly, that the petitioner has not come to the Court with clean hands and deliberately suppressed material and correct facts. Thirdly, it has been stated that the petition does not deserve to be entertained as it raises a disputed question of fact.

4. So far as the merits of the case are concerned, it has been stated that as per Notification dated 15.03.2001 were directed to be shifted after conducting the survey to Gazipur area. The name of the petitioner firm M/s. Rajsheel Distributors being one of the firms doing the business of paper in the Chawri Bazar area was not disputed nor was it disputed that it has been declared successful as one of the allottee of Plot No.132, measuring 50 square meters FAR 140 in IFC Gazipur. The cost of the plot having been

deposited by him is also not an issue with the DDA. However, they have stated that the petitioner is not entitled to any such plot on account of the fact that it had stopped doing business of paper merchant in the year 2004 itself and therefore, the petitioner had not filed the sales tax record after 2005 onwards or the TIN number. It was stated that the petitioner has filed the writ petition No.7750/2010 which was disposed of with the direction that the request of the petitioner may be considered in the light of the documents submitted by him. Then another writ petition bearing W.P.(C) No.2230/2012 which was also disposed of with the direction to the DDA that the writ petition be treated as a representation by the petitioner and appropriate reasoned order be passed dealing with his grievances. It has been stated that a detailed and reasoned order has been passed on 29th June, 2012 rejecting the claim of the petitioner for allotment of an alternative plot of land bearing No.132, measuring 50 square meters in Gazipur area for the reason that the petitioner has been guilty of not only concealment of facts but also of misstatements. It has been stated that the petitioner does not have any right to get the plot/land and he has deliberately filed false and misleading affidavits. In this regard, original record was shown to the court and a photocopy thereof was retained by this Court. It has been stated that different persons have filed affidavits claiming themselves to be the owner of M/s. Rajsheel Distributors, therefore, it was prayed that the writ petition is liable to be dismissed.

5. I have carefully considered the submissions made by the respective sides. I have also gone through the record.

6. On the very first date of hearing the learned counsel for the petitioner was directed to explain as to how the writ petition itself is maintainable on account of inordinate delay and latches in as much as the order which was passed by the DDA on 29th June, 2012 pursuant to the direction given by the High Court in writ petition (Civil) No.2230/2012 rejecting the claim of the petitioner was passed long back and the present writ petition was filed almost after expiry of two years. No reasonable explanation has been given by the petitioner either in the writ petition or by way of a separate affidavit as to what prevented the petitioner from approaching the court expeditiously after the order dated 29th June, 2012 was passed, though it is stated orally that the copy of the order dated 29.6.2012 was made available to the petitioner only on filing of the application in the disposed off writ petition.

7. The Supreme Court in catena of cases has held that delay and latches in approaching the court seeking redresssal of grievance of a party is fatal. Reliance in this regard can be placed on Shankara Co-operative Housing Society Ltd. Vs. M. Prabhakar & Ors.; AIR 2011 SC 2161 wherein it was observed that inordinate unexplained delay in approaching the court was adequate for refusing to exercise discretion in favour of the respondent. Therefore, if the delay is not reasonably explained, the High Court will be well within its right to refuse to exercise discretion in favour of the party

in entertaining the writ petition. Even if the oral explanation of delay in obtaining the copy of the order is accepted, still there is no explanation given as to why there was a delay of one year in approaching the court.

8. Coming back to the facts of the present case as has been stated above, the writ petition has been admittedly filed in the year 2014 in which order dated 29th June, 2012 has been challenged while as no reason whatsoever has been given by the petitioner explaining what prevented him from coming to the Court on an earlier date. It is a common knowledge that the land is scarce in Delhi and even a plot of land of 50 square meters of commercial plot carries a premium of lacs of rupees. Therefore, by sleeping over the matter for almost two years and suddenly waking up to file the writ petition raises a reasonable doubt that the petitioner may have intended to transact the property. This is more so in the backdrop of the fact that the impugned order notices that the concerned firm had not transacted any business of substance, that is, paper after 2005. Therefore, on this short ground, the writ petition is liable to be dismissed.

9. Even if this point of delay and latches is ignored by the Court then on merits also the petitioner is not entitled to any relief from the Court. The reason for this is two-fold; first, admittedly the business which was being carried out at Chawri Bazar was under the name of M/s. Rajsheel Traders. M/s. Rajsheel Traders is now being claimed to be the proprietary concern of Rajinder Kumar Gupta,

HUF who has purported to file two affidavits. However, before filing of the said affidavits on 30.06.2008, Sheela Gupta, wife of Rajinder Kumar Gupta has filed an affidavit on 27.12.2006 claiming herself to be the sole proprietor. Both, Rajinder Kumar Gupta and his wife, Sheela Gupta are now no more and Alok Gupta, the present petitioner is their son. At the relevant time when the information was sought, both of them could not have been the proprietor of the concern. One of them was certainly lying. The court proceedings have some sanctity and solemnity. A person cannot be permitted to file affidavits with reckless disregard to facts. In normal circumstances, had both of them would have been alive, one of them would have been proceeded for the offence of perjury. Both these affidavits cannot be correct; one of them is admittedly false. On this short ground itself, the writ petition is liable to be dismissed.

10. The second point is that when the allotment was made the prospective allottee was directed to file his details of sales tax return even after 2005 upto the time when the allotment was to be made. While as the petitioner filed sales tax return only upto 2004 and the explanation which is furnished by him with regard to sales tax is that prior to 2005 since sales of the petitioner firm had fallen less than Rs.5,000/- therefore, the sales tax record could not be filed and after this stand the petitioner had applied for a fresh sales tax number and was allotted a fresh TIN number which has been filed by him and which is 07310363518.

11. A firm or a proprietor who does not transact any business does not forfeit his TIN number unless and until the business is completely closed. In this case there is documentary evidence on record that the petitioner firm, when it had applied for allotment of alternative plot had one TIN number and since the business was closed therefore, the sales tax TIN number was revoked and it had to apply for new TIN number. The plea which has been taken by the petitioner that since the business has fallen down therefore, the new TIN number was applied for is unacceptable. It is a case where a dishonest person or a firm is trying to seek a mandamus to the DDA to allot a plot of land when its right has completely ceased on account of closure of business. Therefore, it does not deserve any relief from the Court.

12. The third preliminary objection which was raised by the respondent/DDA was that this raises a disputed question of fact which cannot be adjudicated by the writ court. So far as the DDA is concerned, it, after examination of the entire record, has come to the conclusion that the allotment letter was issued to the petitioner in routine manner while as the scheme was essentially devised for the benefit of those persons or firms or concerns who were actually carrying on business at the time when the allotment was to be made. As against this, the allottee, M/s. Rajsheel Distributors had closed the business in the year 2005 itself. This view has been taken by the DDA by giving detailed reasons which are being reproduced as under :-

"I have carefully considered the averments made by the petitioner in his representations dated 6.3.2011 and 16.5.2011. It is noted that the basic purpose of allotment of alternative plot at IFC Gazipur was to relocate the paper traders functioning in the walled city to another suitable location. Thus, only those firms which were actually functioning in the walled city area were required to be relocated by allotment of alternative plots at IFC Gazipur. The firms who were either not functioning in walled city area or the firms who were functioning from walled city area at one point of time but had subsequently stopped their business in paper trade and had dis-continue functioning from walled city area were not required to be relocated because they did not exist in the walled city. Because the firms which were not functioning in the walled city area at the time of allotment were not required to be relocated, such firms were not eligible for allotment of alternative plot in IFC Gazipur. The petitioner firm M/s. Rajsheel Distributor was functioning in the walled city at the time of survey and identification of eligible firms by the Committee constituted by Hon'bel LG. Therefore, name of the petitioner firm was recommended by the Committee for allotment of alternative plot at IFC Gazipur. The offer of allotment was issued to the petitioner firm in a routine manner. However, the petitioner firm stopped its business of paper trade in the year 2004-05. The Value Added Tax Officer, Deptt. of Trade and Taxes, Govt. of NCT of Delhi has also informed that the registration of M/s. Rajsheel Distributor has been cancelled w.e.f. 2.3.2005. As per Sales Tax Assessment Order for the year 2004-05, the said assessment order was the last assessment order of the firm. The said assessment order was a consent order as the Chartered Accountant authorized by the petitioner firm was present during the said assessment

order. Thus, there is no doubt that the petitioner firm stopped its business in paper trade w.e.f. year 2004-

05. As it was not existing and functioning from the walled city area after year 2004-05, the said firm was not required to be relocated any further. Therefore, there was no question of allotment of alternative plot to the said firm. Therefore, allotment offer made by DDA to the petitioner firm is required to be withdrawn because said allotment would not serve the purpose of relocation scheme. For the same reason, there is no question of handing over the possession to the offered plot or execution of Perpetual Lease in respect of offered plot.

It may further be seen that when the fact that the petitioner firm did not exist in walled city area at the time of allotment came to notice of DDA, the petitioner firm applied and got a new registration under Delhi Value Added Tax Act, 2005 with the identical name. However, the TIN No. allotted to newly registered company with the identical name was different from the registration No./TIN No. of the old company. Apparently, the re-registration with Deptt. of Trade and Taxes was aimed at mis-leading DDA to believe that company is still carrying out paper trade from the walled city area. However, DDA clearly saw through the design of the petitioner firm and did not hand over possession of the offered plot to the petitioner.

The Director (CL) vide his order dated 30.12.2010 had clearly established that the petitioner firm is not eligible for allotment of the plot and same is liable to be cancelled. Director (CL) had further asked the Company to provide details of Bank Account and other documents so that the amount deposited by the firm may be refunded after due deductions as per

terms and conditions of offer of allotment. The petitioner company has not furnished the details for refund.

In view of the facts mentioned in foregoing sections, it is concluded that the petitioner firm stopped carrying out the business of paper trade at the time of allotment of alternative plot. Therefore, it is not eligible for shifting or for allotment of alternative plot. The said allotment would not serve the purpose of relocation. Therefore, the said offer of allotment is liable to be cancelled and withdrawn. Therefore, there is no merit in request for the petitioner for allotment, possession and execution of Lease Deed. The same are, therefore, rejected, for reasons noted above.

Ordered accordingly.

Sd/-

                       th
               Date:29 June, 2012                  (DEVESH SINGH)
               Delhi.                                Director (CL)"

13. Therefore, in view of the aforesaid reasoning given by the DDA also, no fault can be found in the conclusion arrive at by it that the petitioner concern was not carrying on business at the relevant time an therefore, no alternative allotment could be made to it.

14. Before parting with the case, it may be pertinent here to refer to the judgments which have been relied upon by the learned counsel for the petitioner which are Thakur Tankers (M/s.) vs. DDA & Anr.; 2013 VI AD (Delhi) 41, Anita Kumari Gupta (Mrs.) vs. Late Mr. Ved Bhushan (Deceased Thru. LRs) & Ors.; 2014 IX AD (Delhi)

411, Rajinder Pal Malik vs. Vice Chairman, DDA; 2016 Legal Eagle (Del.) 60 and V.P. Sunita Vs. DDA; 2014 III AD (Delhi) 459.

15. In Thakur Tankers's case (supra), the facts are totally different and the delay and latches was held to be not a ground for denying the benefit of alternative allotment to the petitioner in that case for two reasons. Firstly, that the stand which was taken by the DDA before the court was not the one which was the basis of rejection of the alternative plot to the petitioner and in terms of the judgment in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi and Others; (1978) 1 SCC 405. The court had taken a view that the stand before the DDA could not be permitted to supplement by a new ground. While as in the present case, there is no such infirmity in the impugned order wherein the DDA has taken a categorical stand that the petitioner concern was not transacting the business at the relevant time which would entitle it to an alternative allotment and that stand has been reiterated before the court. Secondly, in that case, there were similar petitioners, who were allotted alternative plot while as the petitioner was being discriminated. In the present case, there is no such averment or allegation that the person or concern, who is similarly placed as the petitioner in the present case, yet the petitioner is not being allotted the alternative plot, as has been done in the case of others. These are the points in the present case which distinguishes it from the facts of the judgment which has been relied upon by the petitioner.

16. In V.P. Sunita's case (supra), there was a delay in depositing the amount which was not to be taken as vital while as in the present case, there was no such allegation that there was any delay in deposit of the amount of money by the petitioner. In Anita Kumari's case (supra), the court had taken a view that the substantive right of the parties could not be defeated by delay and latches. This was a case where the question of apportionment of the shares of the descendents of a person was involved. It was a case which was for partition of properties that the court observed the delay and latches would not defeat the rights of the parties and certainly that was the correct proposition of law inasmuch as the court had allowed the application of the defendants under Order VII Rule 11 CPC rejecting the plaint holding that the plaint does not disclose any cause of action which order was set aside by the High Court. Rajinder Pal's case (supra) was a case pertaining to the Gadgil Assurance Scheme given in Parliament with regard to allotment of a plot of land to the displaced persons who had migrated from Pakistan. Therefore, the facts of all these cases are distinguishable from the facts of the present case and the proposition of law which has been enunciated in those cases on question of delay and latches has to be seen in the facts and circumstances of those cases which cannot be applied blindly to the facts of the present case. I, therefore, feel that the judgments which

have been relied upon by the learned counsel for the petitioner are of no help to him.

17. For the reasons mentioned above, I am of the considered opinion that the writ petition of the petitioner must fail. Accordingly, the same is dismissed. Since the petitioner has already deposited the amount with the respondent long back, the respondents are directed to refund the amount to the petitioner along with interest @ 6 per cent per annum. The interest has been directed to be paid by the respondent on the amount so deposited by the petitioner on account of the fact that the respondent has utilized the money of the petitioner for a considerable length of time and it being a public body should not be permitted to retain the money of the citizen without payment of interest.

18. With these directions, the writ petition is dismissed.

19. Pending application also stands disposed of.

V.K. SHALI, J.

APRIL 19, 2016 Vk/'AA'